Justice Robert R. Thomas has announced his retirement from the Illinois Supreme Court effective February 29, 2020.  Justice Michael J. Burke, currently a member of the Illinois Appellate Court, Second District, has been appointed to fill Justice Thomas's seat from March 1, 2020, through December 5, 2022.  DuPage County Circuit Judge Liam Brennan has been assigned to the Second District effective March 2, 2020, through December 5, 2022.

Justice Thomas has served on the Illinois Supreme Court since November 2000 and served as Chief Justice from 2005 to 2008.  Before that, he served on the Second District of the Appellate Court and as a Circuit Judge of the 18th Judicial Circuit in DuPage County.  Justice Thomas was admitted to the Illinois Bar in 1981 and practiced in several firms before being elected to the bench in 1988.

Justice Burke began his legal career in the DuPage County State's Attorney's Office in 1983 and became Chief of the Special Prosecutions Unit in 1991.  He became an associate judge in 1992 and was appointed to the circuit court in 2001.  The next year, he was elected to the circuit court, where he served until his assignment to the Appellate Court in July 2008.

Judge Brennan currently serves as the Presiding Judge of the Felony Division of the DuPage County Circuit Court.  He became an Associate Judge in 2008 and a Circuit Judge in 2014.  Before serving on the bench, Judge Brennan worked in private practice and in the DuPage County State's Attorney's Office.

The Illinois Supreme Court's announcement of Justice Thomas's retirement, Justice Burke's appointment, and Judge Brennan's appointment can be found here. 

The Appellate Lawyers Association congratulates Justice Thomas on his retirement, Justice Burke on his appointment to the Illinois Supreme Court, and Judge Brennan on his appointment to the Illinois Appellate Court.

The Chicago Bar Association is hosting a candidate forum on Wednesday, Feb. 26, for the judicial candidates running for the Illinois Supreme Court.  The forum will be held from 3 p.m. to 5 p.m. at the James R. Thompson Center, 100 West Randolph Street, in the lower level Assembly Hall. 

Illinois Supreme Court Justice P. Scott Neville, Jr.; Illinois Appellate Court Justices Cynthia Cobbs, Nathaniel Howse, Jr., Margaret Stanton McBride, and Jesse Reyes; and attorney Daniel Epstein are scheduled to participate in the forum, which will be moderated by Paul Lisnek, a WGN-TV Political Analyst and Anchor of WGN-TV’s Political Report.  The forum will also be livestreamed on CAN TV. 

This event is complimentary.  RSVP and direct any questions to events@chicagobar.org. 

On March 3, 2020, the American Bar Association Commission on Women in the Profession and the Women’s Bar Association of Illinois are hosting a Summit on Advancing Women in the Law. The ALA is proud to co-sponsor this free event, where participants will learn what recent groundbreaking research has to say about why women lawyers stay in or leave the profession, and how they can attain access to success in their careers.  

Registration is available here.

By:  Katherine A. Grosh, Levin Ginsburg

The case of Illinois State Bar Association Mut. Ins. Co. v. Canulli, 2019 IL App (1st) 109141, reminds appellate practitioners that filing a notice of appeal prematurely is far less risky than the alternative, i.e., not filing one at all based on false comfort provided by less-than-perfect Rule 304(a) language.

The First District of the Appellate Court dismissed as untimely defendant's appeal from the Circuit Court of Cook County’s declaratory judgment in favor of ISBA Mutual finding that it owed no duty to defend defendant against defendant's former client’s legal malpractice complaint. ISBA Mutual originally accepted the tender of defense, but withdrew its tender after the client amended her complaint to seek only a reduction in legal fees. 

Three months earlier, ISBA Mutual filed a separate action seeking a declaratory judgment that it did not owe defendant a duty to defend him against a sanctions motion filed by third parties whom defendant sued on behalf of his former client. The two declaratory judgment actions were consolidated.

The parties filed cross-motions for summary judgment in both actions. The circuit court granted ISBA Mutual’s motion for summary judgment as to the sanctions motion, but, significantly, the court did not enter judgment on ISBA Mutual’s declaratory judgment action regarding the legal malpractice complaint. In its ruling, the circuit court stated that there was “no reason to delay enforcement of or appeal from (assuming such an appeal is possible)” its judgment in favor of ISBA Mutual regarding the sanctions motion.

Almost seven months later, defendant filed a motion to reconsider the court’s judgment and after it was denied, he filed a notice of appeal—nine months after the entry of the summary judgment order he sought to appeal.

The appellate court dismissed the appeal as untimely, rejecting defendant's two arguments. First, the court rejected defendant's argument that the summary judgment order did not comply with Rule 304(a). The Court stated: “[t]he circuit court need not ‘parrot’ Rule 304(a) in order to invoke it,” and cited to previous decisions in which it found it had jurisdiction to review orders with inexact Rule 304(a) language. Thus, the Court concluded that the language used by the court “clearly invoked Rule 304(a).” 

Second, the court rejected defendant's argument that, even assuming that the order complied with Rule 304(a), the order was not final. The court acknowledged that “the inclusion of Rule 304(a) language cannot render final an otherwise nonfinal order,” but stated that that rule did not apply. The court found that the circuit court’s finding that ISBA Mutual did not owe defendant a duty to defend was a ruling on the merits. And even if the court did not rule on the merits, the circuit court’s order dismissing ISBA’s declaratory judgment action as moot with respect to the sanctions motion “fully disposed of the rights of the parties as to that controversy.”

Finally, the appellate court rejected defendant's argument that the order was nonfinal because the still-pending declaratory judgment claim regarding the legal malpractice complaint was “based on the same operative facts.” The appellate court stated that, “[m]erely because both the sanctions motion and the legal malpractice litigation arose out of the same divorce proceedings, it does not follow that the two are related for purposes of determining whether ISBA Mutual owed [defendant] a duty to defend” because “such a duty depends on the language of the complaints, not the conduct on which the complaints were based.” 

Accordingly, the appellate court concluded that defendant's notice of appeal was untimely and dismissed the appeal for lack of jurisdiction.

The Appellate Lawyers Association is hosting a Candidates' Forum for all candidates seeking election to the Freeman vacancy on the Illinois Supreme Court.  After joining us for our monthly luncheon, each candidate will be allotted time to discuss their qualifications and answer questions posed by the moderator, ALA President Gretchen Harris Sperry.  Time permitting, audience questions may be directed to the candidates.  All declared candidates have been invited to participate.

Date: Wednesday, January 29, 2020

Time: 12:00 p.m. to 2:00 p.m.

Location: Union League Club of Chicago, 65 West Jackson Boulevard, Chicago, Illinois.  Please note that the Union League Club enforces a dress code, which can be accessed here.    

Cost: $40 for public-sector ALA members; $50 for private-sector ALA members; $55 for public-sector nonmembers; and $65 for private-sector nonmembers.  Lunch is included.

PLEASE NOTE: Registrations processed on-site will be charged an additional $5 administrative fee.

Questions?  Call (630) 416-1166, ext. 303

Register:

1.     Use our online registration system here to register for the event and also pay with a credit card.  Or, if you prefer, you can register online but send a check for payment.  Please note, credit card payments can only be accepted through the online registration process. 

2.     Mail your completed registration form along with a check payable to ALA to: 

Chris Teed 
Appellate Lawyers Association 
1717 North Naper Boulevard, Suite 102 
Naperville, Illinois 60563

Cancellations/Refunds:  Cancellations must be received two business days prior to the event in order to receive a full refund.  No refunds will be processed after this time.  Cancellations must be in writing and may be submitted to cteed@wmrhq.com or faxed to (630) 596-1418.  Additionally, payment is expected from no-shows.

By: Catherine Weiler

The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following civil cases are scheduled for argument this Term:

• Whitaker v. Wedbush Secs., Inc.               No. 124792              January 15, 2020
• McAllister v. Illinois Workers’ Comp. Comm’n   No. 124848    January 15, 2020
• Dynak v. Board of Educ. of Wood Dale School Dist. 7              No. 125062        January 22, 2020
• Restore Constr. Co., Inc. v. Board of Educ. of Proviso Township High Schools Dist. 209 No. 125133        January 22, 2020

• Levin v. Retirement Bd. of the Cook County Employees’ and Officers’ Annuity and Benefit Fund of Cook County              No. 125141        January 22, 2020
• Berry v. City of Chicago  No. 124999        January 22, 2020

Below is a summary for one of these cases, Berry v. City of Chicago.  Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA’s website.

Berry v. City of Chicago

This appeal raises three issues: (1) whether a plaintiff who is exposed to lead in drinking water, but who has not developed any physical symptoms from such exposure, has suffered sufficient present injury to state a claim for negligence; (2) whether an injury suffered by many individuals can constitute the type of special damage necessary to maintain a cause of action for inverse condemnation; and (3) whether the immunity for discretionary decisions in section 2-201 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2-201) applies to a local government’s decision to follow recommendations from a private body.

Plaintiffs sued the City of Chicago, alleging that, in replacing water mains and meters near their homes, the City caused their drinking water to have increased levels of lead. Plaintiffs had not developed physical symptoms from their exposure to lead, but had drunk the contaminated water. Plaintiffs’ complaint asserted claims of negligence based on their exposure to lead and inverse condemnation based on damage to their water pipes. The City moved to dismiss the complaint under section 2-615 of the Code of Civil Procedure, asserting that Plaintiffs had not suffered sufficient physical injury to assert a claim for negligence and that they had not suffered special damage to their property necessary to state a claim of inverse condemnation. The City also asserted that it exercised discretion in replacing the water mains and meters such that the City was immune under section 2-201 of the Tort Immunity Act. The circuit court granted the City’s motion to dismiss, finding that Plaintiffs had not suffered a physical injury sufficient to maintain their negligence claim or special damages necessary to maintain their inverse condemnation claim.

The appellate court reversed. The court held that Plaintiffs’ consumption of lead-contaminated water was a sufficient present injury to state a claim for negligence because of the increased risk of physical injury created by the consumption of lead. The court also held that Plaintiffs suffered special damages when the City’s work interfered with their use and enjoyment of their homes even though many individuals were affected by the increased lead levels. Finally, the court held that section 2-201 of the Tort Immunity Act did not apply because, while the City exercised discretion in developing its plans for replacing the water mains and meters, Plaintiffs alleged that the City was simply executing that plan by following guidelines for water main and meter replacement set by the American Water Works Association.

Justice Connors dissented, arguing that Plaintiffs had not suffered sufficient injury because they had no developed physical symptoms from their exposure to lead and that they had not suffered special damages because many people all suffered the same damage to their property.

By: Leah Bendik

The Illinois Supreme Court’s January Term oral arguments begin Tuesday, January 14, 2020, with additional oral arguments scheduled for January 15th and 22nd. A total of 10 cases will be heard – 4 criminal and 6 civil. The following criminal cases are scheduled for argument this Term:

People v. Aaron Jackson   No. 124112   January 14

People v. Jasper McLaurin     No. 124563  January 14

People v. Charles Hill   No. 124595   January 14 

People v. Rory John Swenson  No. 124688  January 14

Below is a summary for one of these cases, People v. Charles Hill. Summaries for this case and others pending in the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.

People v. Charles Hill

In May 2017, police pulled over defendant when they thought his passenger matched the description of a wanted fugitive.  It was not the fugitive.  But the officer smelled raw cannabis.  A search of the car found crack cocaine.  Defendant moved to suppress.  The trial court granted suppression on the basis that the stop was not justified because the officer had no corroborating evidence that the passenger was the fugitive.  The State appealed, and the appellate court held that the stop and subsequent search were justified. 

By:  Dodie O'Keefe

As the new year arrives, practitioners and judges must pay heed to changes in the law concerning special interrogatories under section 2-1108 of the Illinois Code of Civil Procedure (735 ILCS 5/2-1108). Previously, the statute required special interrogatories that were in proper form to be submitted to the jury if any party so requested. The trial court’s submission or refusal to submit a special interrogatory was reviewed under the de novo standard. And, where the jury’s answer to a special interrogatory was inconsistent with the general verdict, the former controlled the latter. 

In trials beginning on or after January 1, 2020, parties may still request special interrogatories, but whether to submit them will lie within the discretion of the trial court. Thus, “[s]ubmitting or refusing to submit a question of fact to the jury may be reviewed on appeal to determine whether the trial court abused its discretion.” Notably, the statute will also allow parties to explain to the jury the result of a special finding that is inconsistent with the general verdict. To that end, if a special finding is inconsistent with the general verdict, then the trial court must “direct the jury to further consider its answers and verdict.” If the jury is still unable to render a compatible verdict, then the court must order a new trial. 

With that in mind, let us hope these changes bring resolution to this notoriously challenging area of law in the new year.

 By: Linda Boachie-Ansah

  In the movie Forrest Gump, the protagonist observed that,  “life was like a box of  chocolates; you never know what  you’re going to get.” Clarisha Benson and Lorenzo Smith,  plaintiffs in Benson v. Fannie May Confections Brands, Inc., No.  19-1032, 2019 WL 6698082 (7th Cir. Dec. 9, 2019), can attest to that observation. Benson and Smith bought boxes of chocolate from Fannie May stores in Chicago, Illinois. To their displeasure, upon opening the boxes, plaintiffs found less chocolate than they were expecting. Benson and Smith filed a lawsuit against Fannie May on behalf of themselves and a putative class under the Illinois Consumer Fraud and Deceptive Business Practices Act (“ICFA”), see 815 ILCS  505/1 et seq. Plaintiffs also brought claims of unjust enrichment and breach of implied contract.

According to plaintiffs, Fannie May’s boxes contained unnecessary space that misled consumers into thinking that they would receive more chocolate than they actually would. Had they known there was so much empty space in the boxes, plaintiffs claimed that they would not have purchased the chocolate. Fannie May moved to dismiss the amended complaint with prejudice under Federal Rule of Civil Procedure 12(b)(6). The district court granted its motion, reasoning that plaintiffs had not sufficiently pleaded a violation of the Food, Drug, and Cosmetic Act (“FDCA”), see 21 U.S.C. § 301 et seq., and that the FDCA preempted plaintiffs’ claims under Illinois law.

On appeal, the Seventh Circuit noted that preemption is an affirmative defense. Defendant bears the burden of proving an affirmative defense. Thus, the court held that it was improper for the district court to punish plaintiffs for “failing to anticipate an affirmative defense in [the] complaint and dismissing the action based on FDCA preemption.”

Turning to their claim under the ICFA, the court noted that to prevail, plaintiffs had to plead that (1) the defendant committed a deceptive or unfair act with the intent that others rely on the deception; (2) the act occurred in the course of trade or commerce; and (3) the act caused actual damages. In this case, the outside of the box revealed both the net weight and number of pieces of chocolate inside the box. Nonetheless, the court credited plaintiffs’ assertion that they and other reasonable consumers “attach importance to the size of [the] package.” Overall, the court found that plaintiffs adequately pleaded that Fannie May committed both deceptive and acts.

But plaintiffs also had to show that the deceptive or unfair act caused them to suffer actual damages. And here, where plaintiffs never alleged that the chocolates were worth less than what they paid for them, or that they could have gotten a better price from another company, the court ruled that they could not show a pecuniary loss. The court therefore concluded that plaintiffs’ claim under the ICFA was properly dismissed on the pleadings.

On the remaining claims, the court of appeals found that “there is no stand-alone claim for unjust enrichment” under Illinois law. Thus, plaintiffs’ failure to state a claim under the ICFA necessarily meant that they could not state a claim for unjust enrichment. Plaintiffs also claimed that Fannie May breached an implied contract. But the court observed that the parties had entered “a straightforward, everyday sales contract in which the buyers selected the chocolate and offered to purchase it at the advertised price, at which point Fannie May accepted by taking the plaintiffs’ money in exchange for possession of the chocolate.” The sales receipts that plaintiffs received at the cash register spelled out the terms of the contract. Finding that Illinois law does not recognize an implied contract under these circumstances, the Seventh Circuit concluded that that part of the case was correctly dismissed.

On November 25, 2019, The Illinois Supreme Court issued an order permitting the use of electronic devices during oral argument under limited circumstances.  The order allows counsel or litigants to use electronic devices, including laptops, tablets, or cell phones, for referencing notes, taking notes, or searching the internet during oral argument.  

Electronic devices may not be used for posting on social media, texting, emailing, phone calls, recording oral arguments, or taking pictures, and spectators are still prohibited from using electronic devices.  Those intending to use electronic devices must give the clerk of the Court at least seven days' notice.   

The order can be found here.